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DEFAMATION LAW - FAQ's             Back to home page

 

Defamation - the branch of law that deals with legal liability for acts of negligence and other civil wrongs and the way in which damages are assessed is known as the law of delict. The law protects your reputation and provides that the unjustified publication – oral and written – of anything damaging to a reputation may allow the injured person to claim damages for defamation.

An Attorney can assist you in protecting your reputation at all times. This can be applying to court for an interdict, if you learn that something defamatory is about to be published about you, or by an action for damages providing financial compensation (damages) for any person who has had his reputation damaged.

The law of defamation is one of the more complex and uncertain branches of our law so if you feel that you have been or about to be defamed consult with an attorney.

  1. What do you need to show to succeed with your action of defamation?
  2. What constitutes defamatory remarks?
  3. What constitutes reference to the plaintiff?
  4. What constitutes publication of the defamation?
  5. What constitutes a ‘mistake or lack of intention to defame’?
  6. What constitutes comments that are ‘truthful’ or ‘in the public interest or benefit’?
  7. What constitutes fair comment?
  8. What constitutes privilege?
  9. How are damages for defamation calculated?
  10. Defamation, libel and slander – what is the difference?

 

1. What do you need to show to succeed in your action for defamation?

 

 To succeed with your action, you will need to show that:

  • The remarks were defamatory
  • They referred to you: and
  • They were published by the defendant.

You would need to establish two things:

  • Fault, blameworthiness – which is presumed to exist unless the defendant leads evidence to the contrary and successfully raises a defence such as jest or mistake
  • Unlawfulness – (sometimes called wrongfulness), which again is presumed and which the defendant has to meet with a defence such as consent, privilege, fair comment or truth and public benefit. 

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2. What constitutes ‘defamatory remarks’?

 

  • Generally, a court faced with such a decision will ask itself whether a ‘reasonable right thinking man or woman’ hearing or reading the words would think any less of you as a result.
  • Only when the court is clear as to the meaning of the offending words can it decide whether or not they harmed your reputation – it is furthermore necessary that the that the meaning of the words must be determined in the context and circumstances in which they were used.
  • Once the meaning of the words has been determined can the court decide if they actually damaged your reputation. 

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3. What constitutes ‘reference to the plaintiff’?

 

  • To succeed in your action you obviously would need to prove that the defamatory words were aimed at you directly. If you are mentioned by name, you won’t have a problem – but if the speaker or writer does not mention you specifically, you may encounter problems.
  • A defendant cannot avoid liability by speaking in such a manner that everyone knows whom he is talking about, although he does not himself say who it is. The question again is: would a ‘reasonable right thinking man or woman’ reading or hearing the words know that you were being referred to?
  • The most complicated cases occur when you are simply one of a group of persons and the group is referred to, but you are not referred to by name – you would not be able to recover damages if the group referred is too large and diffuse for a ‘reasonable man or woman’ to feel that any particular person was being referred to and consequently had his or her reputation damaged by the remark/s. 

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4. What constitutes ‘publication of the defamation’?

 

  • An action for defamation will only succeed if a third person heard the defamatory remarks in a broadcast or read them in a newspaper, magazine or in some other form, such as a website.
  • It is immaterial – for purposes of liability – whether one, or for that matter, a few thousand people, heard or read the defamatory remarks. Provided at least a third party did, there will be liability.
  • The amount of damages is assessed on the basis of the extent of the damage to your reputation. If for instance, the defamation published to only one or two persons, the damage to your reputation may be very slight, in which case the damages awarded to you will be low.  

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5. What constitutes ‘a mistake or lack of intention to defame'?

 

  • South African law requires that a defendant must intend to defame a plaintiff when he utters or writes defamatory remarks. He must realize that use of the words in question amounts to an unlawful attack on the plaintiff’s reputation. If the defendant is in error, and thinks that what he or she is saying is not defamatory, then he or she is not liable.
  • If a genuine mistake is made about a name, a person may be defamed, but the defendant who made the mistake will not be held to have had the necessary intention to defame.
  • If a defendant makes a defamatory remark which he believes is justified because he believes it to be true and in the public interest, he will not be liable even if it turns out later not to be true. However, he must produce evidence that he did not have the intention to defame.

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6. What constitutes comments that are ‘truthful’ or ‘in the public interest or benefit’?

 

If what was said about you can be shown to be true, and, provided the remarks were also made in the public interest, the defendant cannot be held liable for the damage he does to your reputation. This is because he will be held to have justified his attack on your reputation.

Because it often difficult to tell whether or not a particular remark has been made in the public interest, a few guidelines have been set down:

  • The fact that the public may be interested in a particular matter does not mean that it is in the public interest to publish it. In other words it is not a question whether the public wants certain remarks to be published but whether they ought to be published.
  • Practically anything about the public or private lives of public officials – especially politicians can be published. The justification for this is that, because the public pays the salaries of these officials, they are entitled to know about the activities of these public officials, even if, in certain circumstances, defamatory remarks concern their private lives.
  • It is also generally in the public interest to publish that a certain person has been convicted of a crime.

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7. What constitutes fair comment?

 

  • Part of the right of free speech is that anyone who wishes may express his genuine opinion on any matter of public interest. Most expressions of opinion are protected and entail no liability for defamation, even where they defame a person.
  • It will not help a defendant to simply dress up an allegation of fact as an expression of opinion – the opinion expressed by a defendant must be based on fact for it to qualify as a protected opinion.
  • The comment expressed must be expressed on a matter the public interest – a defendant cannot express his opinion of another person’s private life or morality unless it is in the public interest – for example, if that person is a politician.

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8. What constitutes privilege?

 

Sometimes a defendant sued for defamation may offer the defence of privilege.

  • Remarks made in Parliament are privileged. Remarks made in the course of court proceedings – whether true or false, or whether fair comment or not are similarly privileged. Fair and accurate reports of either parliamentary or court proceedings enjoy a similar privilege.
  • The privilege that parliamentarians enjoy is absolute even when they speak or act in Parliament with the worst possible motives. This is why it frequently happens that one parliamentarian will challenge another to repeat outside Parliament what they had said inside the House, in order to institute an action for defamation.

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9. How are damages for defamation calculated?

 

  • All statements, written or spoken about you, which diminish your reputation in the eyes of right-thinking people, and which were made with that intention, will give you grounds for an action for damages for defamation.
  • Damages are calculated on the basis of the harm done to your reputation. You do not have to prove any actual loss. Nor is there any type of scale for such damages.

The assessment will depend largely on the views of the judge, who is guided by previous awards in similar cases and numerous factors, such as:

  • Malice and the nature and extent of the publication.
  • Presence or absence of an adequate apology; and
  • Rank or social or professional status of the party whose reputation was allegedly damaged.

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10. Defamation, libel and slander – what is the difference?

 

  • Two British law terms that often find their way into South African conversation are ‘libel’ and ‘slander’, which distinguishes between written and spoken defamation.
  • South African law does not draw this distinction: it refers to all reputation damaging statements as defamation, whether they are published (that is made public) by word of mouth or in writing.

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